A St. Louis law firm has sued Facebook in federal court for allegedly using the names and photos of minors to promote their products and services without parental consent.
The theory behind the lawsuit filed by Korein Tillery is that when a minor clicks the “like” button for a page of a business or other commercial entity, that action is often posted on the person’s wall and/or to their friends’ “news feed.” Moreover, a record of who has liked the page, including names and photos, also appears on the company’s Facebook page and is viewable by anyone.
The lawsuit poses the question of whether a minor’s parents should have to provide consent before the minor’s name and image appears on a business or brand’s page, which, according to the lawsuit, is used for marketing purposes to promote the business’s products and/or services. The law firm calls this practice “the invasion of privacy for commercial interests.”
The named plaintiffs in the case are Melissa K. Dawes and Jennifer E. DeYong, two mothers who disapprove of the use of their children’s names and photos for commercial gain; the lawsuit is seeking class action status, and indeed, similar lawsuits have been filed in New York and California.
Facebook plans to fight the lawsuit “vigorously” as it believes it “is completely without merit.” Facebook’s terms and conditions to which a user must agree include the following provision:
[Y]our name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.
The lawsuit alleges, however, that minors do not have the legal capacity to consent to such terms. Aaron M. Zigler, a lawyer with Korein Tillery, has been quoted as drawing a comparison between agreeing to the above terms and getting a tattoo or a credit card—a 16-year-old, he says, can’t legally consent to either of the latter two and so it follows that he or she can’t consent to Facebook’s terms either.
In the similar Los Angeles case, though, according to MediaPost, Facebook has responded that a “like” isn’t an advertisement but instead an exercise of the freedom of speech:
When a Facebook user says that he or she likes certain content—whether it is a brand, a product, a political candidate, or a cause—that user is communicating to his or her friends an affinity for that content. . . . There can be no dispute that the user’s friends have an interest in receiving that communication.
Moreover, argues Facebook, even if a “like” is equivalent to an ad, the company is immune from suit pursuant to the Communications Decency Act, which relieves such online platforms from liability for user activity: “Facebook provides neutral tools that permit users to post information to the Web site, but it is users who determine what information to post,” avers Facebook.
This will certainly be an interesting case to follow as it could help clarify to what extent social media users retain privacy interests in what they post online.
By the way, faithful LegalZoom blog readers may recognize the firm name of Korein Tillery as the same that brought suit against tobacco company Philip Morris, securing a $10 billion settlement that has recently been in the news again.
What do you think of the Facebook lawsuit?